Levelling The Defamation Playing Field

Government moves closer to amending The Defamation Act 2009

On 01 March 2022 Minister for Justice Helen McEntee T.D. published the long-awaited Report of the Review of the Defamation Act 2009[1] (“the Review”). The Review was published following a number of steps including a public consultation, an analysis of defamation laws in other jurisdictions as well as a review of caselaw of the European Court of Human Rights.

This analysis will now set out the background for the next step of the process, namely the production of the General Scheme of a new Defamation Bill which Minister McEntee is endeavouring to publish by the end of 2022.[2]

What are the key recommendations in the Review?

• No more juries in High Court defamation cases.
• Amend the defence of innocent publication to exempt a broadcaster from liability for a statement made by a contributor during a live broadcast.
• Encourage proactive judicial case management to reduce legal costs and delays.
• Amend the defence of ‘fair and reasonable comment in the public interest’ to allow for clearer protection for responsible public interest journalism.
• Allow the Circuit Court the power to grant a “Norwich Pharmacal” Order.
• Introduce a new ‘anti-SLAPP’ (Strategic Lawsuit Against Public Participation) mechanism.

The review does not recommend the following:

• The introduction of a cap on damages. The reasoning behind this approach is that this could give rise to constitutional issues, and it would risk being too rigid.
• The introduction of a book of quantum. Quantifying defamatory remarks is a difficult task given that the injury is intangible. Unlike the Judicial Guidelines that cover personal injury cases there is no comparative such as medical records on the progression of a plaintiff’s injuries when it comes to defamation actions.
• The introduction of a general requirement for a plaintiff to first prove that they have suffered ‘serious harm’ . The Review did recommend that a serious harm test should be introduced for ‘transient defamation’ claims (“supermarket defamation claims”) or instances where a company wishes to take a defamatory claim.

What will change look like?

An end to unpredictable and often excessive jury awards

Perhaps the most significant outcome following the Review is the recommendation to abolish trials by jury. There have been several cases in previous years where jury awards have been excessively high. Time and again both the Court of Appeal and the Supreme Court have reduced these awards. Perhaps the most notable case was that of Kinsella v Kenmare Resources[3] which was the highest defamation award ever made in the State. The jury in the High Court awarded €10 million in favour of the plaintiff. This sum would subsequently be reduced to €250,000 in the Court of Appeal, a reduction of 97.5%.

Removing juries should also lead to reduced delays in getting cases heard, shorter hearings and in turn reduced legal costs. This approach will also provide more certainty as no two juries are the same. The Review notes that this certainty should facilitate earlier settlement and ensure greater transparency on the reasoning behind decisions.

In fact, early settlement of disputes is an important feature in the Review. It recommends allowing lodgements to be made in Court where a defendant has made an offer to make amends, but the parties fail to agree on the level of damages. Mediation is another method favoured by the Review to settle disputes as it is more cost effective than going to trial and it allows parties to reach a resolution on their terms.

Increased protection for responsible public interest journalism

Although the Review strongly advocates that a person’s right to a good name should still be protected vigorously it advocates for more protection to media outlets to allow them to engage in public interest journalism with more freedom by affording them more robust defences.

In particular, the recommendation to amend the defence of “fair and reasonable publication on a matter of public interest “should lead to more intrepid journalism. This defence is too technical and burdensome at present as the intricacies of the elements of the defence as set out in the current legislation need to be explained to a 12 person jury. Instead, the less cumbersome approach as recommended in the Review and as applied in the UK and Canada will be a welcome development for all media outlets. This recommendation comes with the necessary caveats such as the publisher must reasonably believe that its publication is in the public interest, and they must act responsibly in the circumstances regarding trying to verify the accuracy of the statement.

Further, the Review recommends the amendment of the defence of “innocent publication”. This will exempt broadcasters from liability for a defamatory remark being made live on air provided that it has taken reasonable precautions prior to the broadcast, and exercises reasonable care during the broadcast. This is a welcome approach given broadcasters have no effective control during live broadcasts for statements being made. Further, in the context of online forums the Review recommends extending the defence of innocent publication to operators of websites in relation to user-generated comments provided that they are subject to the obligation to take down content expeditiously, and/or identify the poster, if notified of defamatory content.

Finally, the introduction of an anti-SLAPP mechanism will be welcomed in particular by journalists. This concept refers to defamation actions taken by entities or persons intent on using it for vexatious litigation, to weaken and deter public interest discussion.

Getting up to speed in dealing with online defamation

Given that social media plays a far bigger role today than it did in 2009 it is no surprise that the Review also focuses on protecting against defamatory statements made online. The 2009 Act does not address the issue of online publication in any great detail. The Review has recommended evolving the definition of ‘online’ publication to include ‘authors’, ‘editors’ or ‘publishers’ in order to clarify liabilities and / or defences which would help avoid many technical complexities, infrastructure and issues regarding various social media platforms.

Of practical significance is the recommendation that Norwich Pharmacal can be made by the Circuit Court going forward. At present only the High Court can make these orders which compel a third party service provider to disclose the identity of an anonymous poster of defamatory material.

It is also proposed to establish a Notice of Complaint process for any person effected by defamatory material online which will allow them to notify an online publisher in order to expedite the removal of the defamatory material.

When will we see change?

The changes proposed by the Review are welcome. However, it is worth bearing in mind that the above changes, if implemented, will not take place in the immediate future. This review was required by law to be carried out over six years ago, but it has not happened until now. Minister McEntee has given assurances that the General Scheme of the new Bill will be drawn up before the end of 2022 which indicates that 2023 is the earliest point at which the current law will change.

In summary, the Review will be welcomed by publishers and broadcasters as it undoubtedly assists them in the defence of defamation claims. They will however be disappointed that the “serious harm test” is not proposed to be more broadly applied as it is in England and Wales. While awards are likely to come down, spurious or borderline defamation proceedings are less likely to be issued and more defences are going to be available to defendants, genuine claimants will still have a suite of remedies available to them. It remains to be seen whether or not the above recommendations will act as a significant brake on the increasing number of defamation actions being taken in this jurisdiction from year to year.

[1] Department of Justice, Report of the Review of the Defamation Act 2009.

[2] Department of Justice, Defamation Review Summary Report, 26.

[3] Kinsella v Kenmare Resources [2019] I.E.C.A. 54.